Transformation and the judiciary: an ANC litmus test?

Carmel Ricard has an interesting column in The Weekender in which she agrees with sentiments first expressed by Barney Mthombothi, editor of the Financial Mail, who complained that “Political activism seems to be the new litmus test for appointment to the bench.”

Mthombothi suggested that it may no longer be appropriate to question a candidate for appointment to the bench about his or her political activism because if the “litmus test” is political activism, whose politics is acceptable? “Where do we draw the line?” he asks. “Does working for the DA, IFP, HNP qualify? Or is it only the ANC that’s acceptable?” She then continues:

In the early days, I could usually justify questioning of this kind: the commissioners wanted to ensure that candidates were committed to the values of the new constitution. So they asked people questions meant to test their value system. They had worked as lawyers under apartheid legislation: where had they stood on the moral and ethical issues inevitably raised?

When the commission first started, however, legal and other work against apartheid, and the effect of apartheid laws on a CV, did not automatically mean that you were a member of any party (although it often reliably indicated the parties of which you were not a member). It demonstrated a general mind-set — perhaps a predisposition to support the values of the constitution — rather than adherence to the internal discipline of a particular party.

In other words, it was a philosophical question rather than one aimed at finding out to whom you paid your dues. But today it’s far more complex. Some candidates, black and white, are unable to put up much of a response to the question these days. Either they were too young, or else they did nothing at that time that would impress the honourable commissioners.

It has sometimes seemed unfair when black candidates with little to say about political activism or even community involvement of a nonpolitical kind — except (and I grant you this is a sizeable exception) that they survived apartheid — are treated with kid gloves, while white candidates are gone over with boxing gloves for a CV that discloses a similar lack.

The commission may deny the existence of Mthombothi’s “litmus test”, but he is not the only one to believe in it. How else does one explain the fact that candidates, black and white, arrive at interviews with CVs that disclose they joined the ANC a short while before the hearings? Obviously the word has gone out that unless you support a particular party, namely the ANC, your chances of appointment are much diminished.

I agree of course that there should not be a litmus test, requiring a candidate to be a supporter of the ANC, before he or she could be appointed to the bench. But the need to appoint individuals to the bench who embrace the values of equality, dignity and freedom embodied by the Constitution is just as pressing as it was fourteen years ago.

The question is, how does one determine whether a candidate holds the progressive views required by the Constitution? How does one know whether a candidate believes in gender equality and the prohibition of discrimination on the basis of sexual orientation, for example? It seems to me one of the great weaknesses of the appointments procedure has been that some people have been appointed who are basically, but for their race, just as conservative on gender and sexuality issues as some of the the old white judges with their grey shoes.

What is the use of having a progressive constitution in terms not only of racial issues but also in  terms of poverty issues, of gender issues, of sexuality issues, if we appoint reactionary patriarchs to the bench?

Perhaps what is needed is for JSC memmbers to cast the net wider and to ask far broader questions about the commitment of candidates to social and economic transformation. If I was a member of the JSC I would ask candidates about their views on the Fourie same-sex marriage judgment, the Jordan sex workers judgment, the Volks v Robinson judgment onthe role of non-married woman. Their answers on such issues will probably say far more about whether such candidates have embracved the values of the Constitution, than questions about whether candidates have belonged to a particular political party.

We really do not need to replace white patriarchs with black patriarchs. What we need is to appoint truly progressive judges who embrace the right to diversity and difference, who understands the reactionary nature of many of the implicit assumptions underlying aspects of the common law, who has a vision of a truly equal and free South Africa.

I would guess not many such candidates would have been members of the HNP or the DP, but I would also guess that many candidates who might have joined the ANC would not share these values.

So, I for one would not plead for an end to JSC questioning of candidates values. But I would really wish those questions could address more clearly the real issues of transformation facing our country instead of merely looking at whether a candidate is black or white (although race would, of course, still be one of the aspects that would need to be taken into account).

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